[OFFICIAL ENGLISH TRANSLATION]
2000-5005(IT)I
BETWEEN:
CAROLINE DIONNE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on February 25, 2002, at Bécancour, Quebec, by
the Honourable Judge Alain Tardif
Appearances
Counsel for the Appellant: Christian Tourigny
Counsel for the Respondent: Marie-Aimée Cantin
JUDGMENT
The appeal from the determination of child tax benefit for the 1997 and 1998 base taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of March 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 21st day of May 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020318
Docket: 2000-5005(IT)I
BETWEEN:
CAROLINE DIONNE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal for the 1997 and 1998 taxation years.
[2] The issue is whether the Minister of National Revenue ("the Minister") was justified in issuing notices of redetermination of child tax benefit dated July 20 and August 18, 2000, to the appellant and in claiming repayments of $1,536.25 and $1,674.02 for the 1997 and 1998 base taxation years, respectively.
[3] In issuing the notices of redetermination, the respondent made the following assumptions of fact:
[TRANSLATION]
(a) for the 1997 and 1998 base taxation years, the appellant had two qualified dependants;
(b) for the 1997 and 1998 base taxation years, the appellant and Steve Proulx both indicated that their marital status was "living common law" in their respective tax returns;
(c) for 1997, the appellant and Steve Proulx also entered their spouse's first name and social insurance number in the boxes provided for that purpose;
(d) for 1998, the appellant and Steve Proulx entered their spouse's first name in the box provided for that purpose but left the box for the spouse's social insurance number blank;
(e) although their marital status was correctly recorded when the tax returns were initially assessed, the appellant's CCTB was determined by taking into account her income alone;
(f) on July 20, 1998, the Minister sent the appellant an initial notice of determination of CCTB for the 1997 base taxation year in which [TRANSLATION] "the information used to calculate the benefit amounts to which she was entitled" was indicated;
(g) on July 20, 1999, the Minister sent the appellant an initial notice of determination of CCTB for the 1998 base taxation year in which [TRANSLATION] "the information used to calculate the benefit amounts to which she was entitled" was indicated;
(h) the two notices of determination of CCTB specified that the appellant should review the information and contact the Department of National Revenue if there were any discrepancies;
(i) the two notices of determination of CCTB indicated that the family income was $4,511 and $6,159 for the 1997 and 1998 base taxation years;
(j) that income corresponded to the appellant's income alone;
(k) the appellant did not report any discrepancies in the information provided by the Minister;
(l) on July 20, 2000, the Minister issued notices of redetermination of child tax benefit for the 1997 and 1998 base taxation years and claimed repayments of $1,536.25 and $2,232 for each of those years, respectively;
(m) on July 20, 2000, the appellant sent a request to change her marital status from "living common law" to "single" as of March 31, 2000;
(n) further to the appellant's request, the Minister reviewed the calculation of the appellant's child tax benefit as regards CCTB credits for the 1998 base taxation year;
(o) on August 18, 2000, the CCTB credit repayment amount for the 1998 base taxation year was adjusted to $1,674.02 to take account of the appellant's change in marital status as of March 31, 2000.
[4] The appellant admitted all of the assumed facts, with the exception of subparagraph 10(k).
[5] The evidence was made up of the testimony of the appellant, her father, Claude Dionne, her former spouse, Steve Proulx, and the appeals officer, Louise Girard.
[6] The facts were not disputed. Each year, Claude Dionne, the appellant's father, prepared draft tax returns for his daughter and her former spouse. They copied out their own returns neatly, completed the returns by signing them, and sent everything to the Department.
[7] The evidence showed that everything was prepared and recopied in good faith and that no false information was provided.
[8] For 1998, the social insurance number of the appellant's former spouse was not given. Again, this was not an intentional omission, and the explanation provided was plausible and appropriate. It seems that the former spouse's social insurance number was already printed on the form, which was why he and the appellant did not think fit to write it in by hand as well.
[9] In 2000, the appellant notified the Minister that she no longer had a spouse. As a result of that notification and its recording, it was found that the income of the appellant's spouse had never been considered for previous years in doing the calculations to determine the child tax benefit to which the appellant was entitled.
[10] After that administrative error was found, notices of redetermination were issued for 1997 and 1998, the previous years being statute-barred.
[11] The appellant, who did not understand why she had been reassessed, explained that, following a conversation with a friend, she had already checked whether the amounts she was receiving were correct. She said that the person with whom she spoke had indeed confirmed that she was fully entitled to the amounts and that everything had been calculated correctly.
[12] The appellant maintained that she had always acted properly, had always been in good faith and had concealed or omitted absolutely nothing when filing her returns for the years at issue.
[13] She therefore concluded that she should not be penalized or have to suffer the consequences of an administrative error to which she did not contribute in any way.
[14] The Minister admitted the administrative error but relied on subsection 152(4), which reads as follows:
152(4) The Minister may at any time make an assessment, reassessment or additional assessment of tax for a taxation year, interest or penalties, if any, payable under this Part by a taxpayer or notify in writing any person by whom a return of income for a taxation year has been filed that no tax is payable for the year, except that an assessment, reassessment or additional assessment may be made after the taxpayer's normal reassessment period in respect of the year only if
. . .
[15] First of all, it should be made clear that, contrary to what she claims, the appellant is not being penalized in the slightest. The notices of redetermination of child tax benefit do not penalize her in any way or deprive her of anything. They merely re-establish, in accordance with the Income Tax Act ("the Act"), the amount actually owed to her after considering all the factors provided for in the Act.
[16] Admittedly, the claim has caused problems and inconvenience. It is unfortunate that the appellant has to be so inconvenienced because of an administrative error. However, this is not sufficient to cancel the claim or allow the appeal. Moreover, the error has benefited her to some extent since she has received amounts that have not been claimed because of the time limit.
[17] The only basis for the appellant's appeal is equity. The Tax Court of Canada has no authority to dispose of an appeal on that basis. Its jurisdiction is basically to decide whether the notices of redetermination comply with the relevant provisions of the Act. Moreover, this is an issue that has been dealt with in several decisions. Some passages from a few of those decisions should be reproduced.
Dubé v. Canada, [1996] T.C.J. No. 1545 (Q.L.), Lamarre T.C.J.:
6 The appellant invoked the administrative error in an attempt to have the assessment vacated. He contended that the Minister had all the evidence in hand at the time he issued the first assessment in which the child care expense deduction was allowed. It was in the reassessment dated December 4, 1995, that the Minister subsequently denied the appellant the deduction.
7 I will respond to this contention by saying that there was no administrative error since the Minister acted within the time limits required by subsection 152(4) of the Act in issuing a reassessment. Furthermore, the case law is clear that the Minister is not bound by his previous decisions if they do not comply with the letter of the Act.
Chilton v. Canada, [1994] T.C.J. No. 354 (Q.L.), Beaubier T.C.J.:
4 The Appellant realized his liability, filed his 1990 Income Tax Return properly and paid his taxes. Revenue Canada reassessed him incorrectly, refunded him money and when he phoned them, told him the law had changed. The Appellant spent the refund and has since lost his job. He is not as well off as he was in 1990 and 1991 and asks for the mercy of the Court in respect of these circumstances which arise from Revenue Canada's error.
5 Unfortunately, this Court does not have the power to do as the Appellant asks. It has only the power to deal with the correctness of the assessment.
Video Adventures Ltd. v. Canada, [1994] T.C.J. No. 751 (Q.L.), Kempo T.C.J.:
10 The Court has a lot of sympathy for Mr. Naugler who, it seems, was doing his personal best to comply with new and complex legislation. However, there is a long, well-established line of authority that mistakes made by fiscal officials do not drive the law, and that estoppel is subject to the general rule that it cannot override the law of the land. No errors concerning the application of the law have been established during this hearing.
[18] In the case at bar, the appellant would like her appeal to be allowed solely because she had nothing to do with the error that was made and that has caused her much inconvenience. There is no doubt that the appellant has suffered some prejudice, but that is not the question. The only questions that I can and must answer are as follows: were the notices of redetermination correctly issued under the applicable provisions of the Act, and were they correctly calculated within the required time? Since the answer is yes, I must simply dismiss the appeal.
Signed at Ottawa, Canada, this 18th day of March 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 21st day of May 2003.
Sophie Debbané, Revisor